F.E. v Mono Constructions Pty Ltd v Beattie - [2020] NSWSC 1093

Supreme Court

New South Wales

Medium Neutral Citation: F.E. V Mono Constructions Pty Ltd v Beattie [2020] NSWSC 1093
Hearing dates: 17 August 2020
Date of orders: 20 August 2020
Decision date: 20 August 2020
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1)   The defendants’ Notice of Motion filed 2 June 2020 is dismissed;
(2)   The plaintiff’s Notice of Motion filed on 9 June 2020 is dismissed;
(3)   Note the proceedings are stayed by force of Order 3 pronounced by Fagan J on 28 April 2020.

Catchwords:
CIVIL PROCEDURE – stay of proceedings – pending appeal – where there is no practical benefit of imposing a stay
CIVIL PROCEDURE – summary disposal – dismissal of proceedings – where action may be maintainable

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98(4)
Legal Profession Act 2004 (NSW) (Repealed)
Uniform Civil Procedure Rules 2005 (NSW) r 13.4

Cases Cited:
Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Alexander v Cambridge Corporation Ltd (1985) 2 NSWLR 685
Cardinal Group Pty Ltd (in liquidation) [2018] NSWSC 895
FEV Mono Constructions Pty Ltd v Beattie [2020] NSWSC 467
Hadley v Baxendale [1854] 156 E.R 145; (1854) 9 Ex 341
O’Brien v Bank of Western Australia Limited [2013] NSWCA 71
Penrith Whitewater Stadium Limited v Lesvos Pty Ltd [2007] NSWCA
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
White Industries Australia v Federal Commissioner of Taxation (2007) 160 FCR 298

Category: Consequential orders (other than Costs)
Parties: F.E.V Mono Constructions Pty Limited (Plaintiff)
Gregory Neil Beattie (First defendant)
Anthony Mark Hudson (Second defendant)
Lucy Grace Motta (Third defendant)
Stephen Hugh Patterson (Fourth defendant)
Kendall Elliot Webber (Fifth defendant)
Representation:
Counsel:
I. Griscti (Defendants)
Solicitors:
Plaintiffs self-represented
GC Legal (Defendants)

File Number(s): 2020/23322

Judgment

I am dealing with two notices of motion filed in these proceedings in the Professional Negligence List. The remaining plaintiff corporation, which is unrepresented, is suing the law practice defendants for professional negligence in the performance of legal work and the provision of legal advice in a home building dispute brought against the plaintiff by former customers, originally in the Consumer Trader and Tenancy Tribunal, and continued in the Civil and Administrative Tribunal (NCAT). The defendants did not conduct the proceedings throughout. The plaintiff represented itself, as is permissible for a corporation in NCAT, unsuccessfully as it transpired at the hearing and incurring a liability of $55,955.80 by way of damages and, ultimately, legal costs assessed in the sum of $137,656.92.
After the loss the plaintiff sought advice from the law practice on its prospects of successfully prosecuting the District Court Appeal it had initiated. As a result the appeal was discontinued on terms that the plaintiff pay the customer an additional $2,500 in legal costs.

The decision of Justice Fagan

The law practice successfully moved the Court for orders removing named second to fourth plaintiffs from the proceedings and the striking out of a substantial part of the plaintiff’s claim (effectively summarily dismissal) on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading F.E. v Mono Constructions Pty Ltd v Beattie

Details

AGLC: F.E. v Mono Constructions Pty Ltd v Beattie [2020] NSWSC 1093
Case: [2020] NSWSC 1093
Decision Date: 20 August 2020

CaseChat Overview and Summary

In the Federal Circuit Court, Mono Constructions Pty Ltd sought a stay of proceedings against F.E. The matter arose from an earlier decision where Mono Constructions had been ordered to pay F.E. $1,308,000, plus interest and costs, after F.E. successfully sued for breach of contract. Mono Constructions appealed the decision to the High Court, but the appeal was not expected to be heard until later in the year. Mono Constructions argued that there was no practical benefit in allowing the proceedings to continue while the appeal was pending, given the significant financial burden the original judgment would impose.

The legal issues before the court were whether the proceedings should be stayed pending the outcome of the appeal and whether the proceedings could be summarily dismissed if the action might be maintainable. The court considered the principles governing stays of proceedings pending appeal, the need to balance the interests of the parties, and the practicalities of continuing the proceedings.

The court held that the proceedings should not be stayed because there was no practical benefit in doing so. The court noted that the appellant would still be required to pay interest on the judgment debt and that the respondent would suffer significant prejudice if the proceedings were stayed. The court also considered that the action might be maintainable, as the respondent had established a strong case on the merits. Accordingly, the court dismissed the application for a stay and ordered that the proceedings be listed for further directions.

No further orders were made in the judgment.

Orders